The Germanic Review, 87: 203209, 2012Copyright c Taylor & Francis Group, LLCISSN: 0016-8890 print / 1930-6962 onlineDOI: 10.1080/00168890.2012.675795

From the Archives

Carl Schmitts Ultimate Emergency:The Night of the Long Knives

Detlev Vagts

T hough the ideas of Carl Schmitt about emergency powers have been the subject ofconsiderable commentary1 recently, the writers do not reference his culminating articleon emergencies. That piece was a paean to Adolf Hitlers murder of scores of supposedadversaries in the Night of the Long Knives of June 30, 1934.2 The article, The FuhrerProtects Justice, represents the lengths to which Schmitt was willing to go in justifying themost drastic use of emergency powers. Some of Schmitts other prose from the Nazi era cansimply be excised from the corpus of his work, but this piece has to be considered as a part ofhis basic teaching.3 As far as I can determine, unlike much of Schmitts output, it has neverbeen translated into English.4 The purpose of this article is to provide such a translation witha description of its context.

The description is all the more necessary because Schmitt does not provide even asketch of what took place on June 30th. A little more than a year into his rule as German

1For recent examples, see Adrian Vermeule, Our Schmittian Administrative Law, Harvard LawReview 122 (2009): 1095; Sanford Levinson and Jack Balkin, Constitutional Dictatorship: Its Dangersand its Design, Minnesota Law Review 94 (2010): 1789.

2For descriptions of the events of June 1934, see Ian Kershaw, Adolf Hitler: 18991936: Hubris (NewYork: Norton, 1998), 51222; Albert Seaton, The German Army 19331945 (New York: Plume, 1982),4550.

3Much of Schmitts pre-1933 work foreshadows this article. See Carl Schmitt, Huter der Verfassung(1931), and the critique of it in Hans Kelsen, Wer Soll der Huter der Verfassung Sein? Die Justiz(1930/31): 576. See, for example, Bernd Ruthers, Carl Schmitt im Dritten Reich (2nd ed. 1990), 7580;Helmut Quaristch, Intr., Complexio Oppositorum uber Carl Schmitt 5, 20 (Helmut Quaritsch ed., 1986);Joseph Kaiser, Konkreten Ordnungsdenken, id. at 322.

4William E. Scheuerman, Carl Schmitt: The End of Law (Lanham, MD: Rowman and Littlefield, 1999),114.

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Chancellor, Hitler felt threatened from two directions. On the one hand there was restivenessamong members of the SA (Sturmabteilung), the brown-shirted street fighters who had doneso much to bring him to power. Some of them took seriously the idea that there was meaningto the words socialist and workers in the title of the National Socialist German WorkersParty. They felt that their contributions had not been recognized or rewarded. Their head,Ernst Rohm, was a formidable fighter and potential troublemaker. He was intent upon gainingprimacy in military matters vis-a`-vis the army. On the other side, there was unease amongthe conservatives who had opened the way for Hitlers appointment. Several of them wereplanning to meet with President Hindenburg to urge him to curb what they regarded asexcesses in Hitlers policies. Most disturbingly of all, the army leadership was consideringforceful means to end the attempt by the SA to gain control over military matters,

It seems likely that subjectively Hitler took these threats seriously, though no evidenceof any plot to seize power was ever presented. Witnesses describe him as highly excited to thepoint of foaming at the mouth. He flew to Munich and there confronted leaders of the SA in aresort hotel and had them imprisoned. One of Rohms chief deputies was caught in bed withanother man, a matter that Hitler stressed in moralistic terms. Rohm was seized and givena chance to commit suicide; when he declined he was shot to death by SS (Schutzstaffel)officers. Elsewhere in Germany murder squads went into action. They killed General Kurtvon Schleicher, Hitlers immediate predecessor as Chancellor, together with his wife and anaide, General Bredow. Also on the list were Edgar Jung, secretary to Chancellor von Papen,who had drafted a critical article about Hitlers excesses, and Erich Klausener, head of theCatholic Action movement. Schmitt had interacted with von Schleicher in various ways.5Hitler also settled scores with men who had incurred his displeasure along the way: GregorStrasser, formerly an important Nazi organizer, and Gustav von Kahr, a figure in Bavarianpolitics in the 1920s. Hitlers enemies on the left were spared as they were already stowedaway in concentration camps. Some were killed by mistake, confused with a target havinga similar name. No list of the assassinated was ever made public and the relevant files weredestroyed. Hitler told the Reichstag that the number was 77; subsequent research indicatesthat the real number was twice or even three times as great.6

On July 13 Hitler spoke in the Reichstag to the German people, justifying his actions,and a statute was passed ratifying them. By and large the popular reaction in Germanyseems to have been favorable. Many regarded the SA as uncouth rowdies that constituted amenace to the public peace and the killings of the rightists were largely ignored, even bytheir comrades in the army. Only one officer dared to attend von Schleichers funeral.

Schmitts article appeared on August 1, 1934, in a journal, the Deutsche Juristen-zeitung, of which he was the editor. By that time the murders were over and Schmitt had noreason to fear that he would be added to the list. A few words about the translation: The firstpart of the article is devoted to asserting that the purge represented a type of firm defensiveaction that would have saved the imperial regime in 1918 if applied to the mutineers and

5For a detailed description of the SchleicherSchmitt relationship see Gopal Balakrishnan, The Enemy:An Intellectual Portrait of Carl Schmitt (London: Verso, 2000), 170-75.6Hermann Mau, Die Zweite RevolutonDer 30. Juni 1934, Viertelsjahrshefte fur Zeitgeschichte

119 (1953): 134.

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socialists of that time. This is part of the stab-in-the-back myth propagated by rightistsand Nazis. In fact, the Kaisers army leadership had failed to defeat the Allies and had askedthe government to make peace. I have not translated some familiar German words suchas Fuhrer, Reichstag, and so on that have specifically German overtones. In general, Ihave translated Recht as justice rather than law. Citations remain in the German form.Schmitt is widely praised for his trenchant writing style. I did not find that quality in thisarticle. Several reasons may explain that deficiency. It was written in considerable hastebetween the purge and the ratifying legislation and the publication date. Schmitt also feltimpelled to track the Fuhrers cruder prose. Schmitts analysis is ambiguous, for at times itseems to be treating the event as an example of the appropriate use of emergency powers butat others seems to say that law is quite irrelevant in the Fuhrers state.

Professor Emeritus, Harvard University

THE FUHRER PROTECTS JUSTICEOn Adolf Hitlers Reichstag Speech of 13 July 1934By Councilor Professor Dr. Carl Schmitt, Berlin

I.

At the German Lawyers Day in Leipzig on 3 Oct. 1933 the Fuhrer spoke about the state andjustice. He pointed to the contrast between a substantive law not separated from decency andjustice and the empty legality of an unreal neutrality and developed the inner contradictionsof the Weimar system which through this neutral legalism destroyed itself and delivered itselfup to its own enemies. To that he appended the sentence That must be a warning to us.

In his Reichstag speech aimed at the whole German folk on 13 July 1934 Hitlerreminded us of another historical warning. The strong German state founded by Bismarckcollapsed during the World War because it in the decisive moment did not have the strengthto make use of its articles of war. Crippled by the patterns of thinking of a liberal rule-of-law state, a civil bureaucracy without political instincts did not find the courage to handlemutineers and enemies of the state according to the justice they deserved. One who todayreads in volume 310 of the Reichstag Document Collection the report of the public plenarysession of 9 Oct. 1917 will be shaken and understand the Fuhrers warning. The report ofthe then national government that leaders of the mutinying sailors had negotiated with themembers of parliament of the Independent Socialist Party was answered by the GermanReichstag in high indignation to the effect that one could not curtail a partys constitutionalright to conduct propaganda in the army and that conclusive proof of high treason waslacking. Well, those conclusive proofs were spat in our face a year later by the IndependentSocialists. In unparalleled courage and amid fearful sacrifices the German folk held its ownfor four years against the whole world. But its political leadership failed in a sad way inthe struggle against the poisoning of the people and the undermining of German justice andsense of honor. Right to this day we are paying for the hesitation and paralysis of the Germangovernments of the World War.

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All of the moral outrage over the shame of such a collapse has been concentrated inthe Fuhrer and has become in him a driving force of a political deed. All the experiencesand warnings of the history of German misfortune are alive in him. Most people fear thehardness of such warnings and prefer to flee into an evasive and compromising superficiality.But the Fuhrer takes seriously the teaching of German history. That gives him the right andthe power to found a new state and a new order.

II.

The Fuhrer protects justice against the worst abuse when he in the moment of danger byforce of his leadership status as highest judicial authority creates justice directly. In thishour I was responsible for the fate of the German nation and thereby the highest judicialauthority of the German people. The real Fuhrer is always a judge. Out of Fuhrerdom flowsjudgeship. One who wants to separate the two from each other or puts them in oppositionto each other would have the judge be either the leader of the opposition or the tool ofthe opposition and is trying to unhinge the state with the help of the judiciary. That is anoften-used method of destroying not just the state but also the law. It was characteristic ofthe blindness about justice of the liberal way of thinking about law that it sought to makeout of criminal law a great liberating charter, the Magna Carta of the criminal (F. vonLiszt). Constitutional law then must in the same manner become the Magna Carta of traitors.Justice is changed thereby into a business of assigning responsibility and the criminal hasa vested right to have it function in a predictable and calculable way. The state and thefolk, however, are totally bound to a supposedly complete legality. For the extreme case ofemergency perhaps spurious emergency exits will be recognized under the table, steps whichare recognized by some liberal legal scholars depending on the status of offenses, but aredenied by others in the name of the rule-of-law state and regarded as not legally existent.With this sort of jurisprudence, the word of the Fuhrer that he acted as the supreme judicialauthority of the people is incomprehensible. It can reinterpret the judicial act of the Fuhreronly as a measure of the state of siege retroactively legalized and requiring indemnity. Afundamental clause of our current constitutional law, the principle of the primacy of politicalleadership, is twisted into a legally empty phrase and the gratitude which the Reichstaghas expressed to the Fuhrer in the name of the German folk into an indemnity or even anacquittal.

In truth the Fuhrers action was true judging. It is not subject to law but is in itself thehighest justice. It was not the action of a republican dictator who creates a fait accompli ina space free of laws while the law for a moment closes its eyes in order that, on the basis ofthose new facts, the fiction of a legality free of gaps may again take its place. The judicialquality of the Fuhrer comes from the same source of justice from which all the justice ofevery folk derives. In the greatest emergency the highest justice justifies itself and thereappears the highest degree of avenging judicial realization of its law. All law comes out ofthe peoples right to life. Every state statute, every judicial judgment contains justice onlyinsofar as it flows from this source. What is left is not justice, but rather a positivistic weavingtogether of compulsory norms which a clever criminal scorns.

VAGTS CARL SCHMITTS ULTIMATE EMERGENCY 207

III.

In a sharp juxtaposition the Fuhrer has emphasized the difference between his governmentand his state vis-a`-vis the state and governments of the Weimar system. I did not wantto deliver the young Reich to the fate of the old one. On the 30th of June 1933 a newgovernment was not created for the umpteenth time but a new system replaced an old andsick epoch. If the Fuhrer with such words demands the liquidation of a sad section ofGerman history that has juridical consequences for our legal thinking, for legal practice andthe interpretations of laws. We will have to test anew past methods and ways of thinking, theold prevailing legal opinions and the decisions of the highest courts in all branches of the law.We may not blindly cling to the legal concepts, arguments and precedents that an old andsick period brought forth. Many a sentence in the reasons for the opinions of our courts is tobe sure to be understood as coming from a justified resistance to the corruption of the thensystem; but that too would now, if carried forward without thought, mean the opposite, andwould make the judiciary the enemy of the state of today. If the Reichsgericht in June 1932(RGSt.66, 386) saw the meaning of judicial independence in protecting the citizen in hislegally recognized rights against the possible arbitrariness of a hostile government that wasspoken from a liberal-individualistic position. The judiciary plunged into a frontal positionnot only against the head of state and the government but also against the administrativeorgans collectively.7 That can be understood as of that period. Today, however, we aresubject to the duty to put into effect the new meaning of all public law institutions, includingthe judiciary, with the greatest decisiveness.

At the end of the 18th century old Haberlin connected the issue of state emergencylaw with the question of line-drawing between matters of justice and matters of state andtaught that if there is danger or great damage to the state the government can declare alljudicial matters to be matters of state. In the 19th century Dufour, one of the fathers ofFrench administrative law, defined each government action withdrawn from judicial scrutiny(acte de gouvernement) that its purpose was the defense of society, indeed defense againstinternal and external, public or hidden, present or future enemies. Whatever one may thinkof such declarations they point to a legally important special quality of the political act ofstate which gained recognition even in liberal rule of law states. However, in a Fuhrer statein which legislation, government and justice do not check each other mistrustfully,8 as theydo in a liberal rule of law state, that which otherwise would be an act of state must to anincomparably higher degree qualify as an act through which the Fuhrer has maintained hishighest leadership and judgeship.

The Fuhrer himself specified the content and scope of his action. That since the nightof Sunday July 1 the state of normal justice has been restored has been made certain by hisspeech. The Law Concerning Measures of State Emergency of 3 July 1934 (RGBl I. P. 529)

7Compare the just published work by H. Henkel, The Independence of the Judge in Its New Meaning(Hamburg 1934), 101.

8Cf. the article by E. R. Huber, The Unity of State Power, infra p. 950 in the same issue of DeutschJuristenzeitung.

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characterizes in the form of a government statute the scope in time and subject matter of theFuhrers direct actions. Special Actions falling within or without the time span of the threedays not in any way connected with the Fuhrers actions and not authorized by him are all theworse injustices the higher and purer the Fuhrers justice is. According to the declarationsof Prussian Governor Goring of July 12 and Reich Minister of Justice Gurtner of July 20,19349 a specially strict criminal law proceeding against such impermissible special actions iscalled for. That distinguishing between authorized and unauthorized action in case of doubtis not a matter for courts can be understood according to the above remarks about the specialquality of acts of government and Fuhrer action.

IV.

Within the scope of those three days there particularly stand out those judge-like actionsof the Fuhrer through which he as leader of the movement avenged the disloyalty of itssubordinate leaders towards him as the highest political leader. The Fuhrer of the movementas such has a judicial task whose internal justice cannot be realized by any other person.The Fuhrer expressly emphasized in his Reichstag speech that in our state there is only onebearer of political will, the National Socialist Party. To a community in which the state,the movement and the Folk are arranged belongs also the law of those state-bearing lifeand community organizations which in a special way are based on the sworn loyalty to theFuhrer. On the fulfillment of that task by the Party there depends today nothing less than thefate of the political unity of the German folk. This mighty task in which the whole dangerof politics accumulates cannot be taken up by any other unit, least of all a civil court ofthe Party or the SA carrying out a trial. Here it stands entirely on its own footing.10 Herethe political leader as a result of the special quality of the crime in a specific way became thesupreme judge.

V.

Over and over the Fuhrer reminds us of the collapse of the year 1918. Our present situationis characterized by that. He who would rightly pass judgment on the serious proceedings ofthe 30th of June cannot take the events of that day and the two following days out of thecontext of our overall political situation and following the sort of specific criminal proceduremethods isolate and encapsulate them to the point that the political substance has been thrownout and a purely juridical situation or non-situation remains. With such methods onecannot do justice to any procedure of high politics. It is, however, part of the poisoning of thepeople in the past decades and is a long practiced trick of anti German propaganda to stressprecisely this isolating procedure as the only one suitable for rule-of-lawstate. In the fall

9Volkischer Beobachter of 13 July and of 22/23 July 1934, and Deutsche Justiz, 925. See also thesurvey, infra p. 983.10

State, Movement, People (Hamburg, 1933), 22.

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of 1917 all the German members of parliament confused in their legal thinking and indeedcapitalists as well as communists, clericals as well as atheists, demanded that one deliver thepolitical fate of Germany to such procedural fictions and distortions and a spiritually helplessbureaucracy did not take in the political sense of those juristic demands. In the face of theaction of Adolf Hitler many enemies of Germany will come up with similar demands. Theywill find it incredible that the present German state has the power and the will to distinguishbetween friend and foe. They will promise us the praise and applause of the whole world ifwe again, as then in the year 1919, collapse and sacrifice our political existence to the idolsof liberalism. Whoever sees the powerful background of our political overall situation willunderstand the warnings and admonitions of the Fuhrer and arm themselves for the greatspiritual battle in which we defend our good justice.

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